Ruling [CJEU] ¦ Cross-Border Evidence in Drug Trafficking Cases: The Limits of the European Investigation Order (EIO)

A ruling with practical consequences for financial crime prosecutions

The Court of Justice of the European Union has clarified how the European Investigation Order operates when an accused person is held in one Member State but prosecuted in another. The judgment in Case C‑325/24, Bissilli, is especially relevant to complex financial crime cases involving drug trafficking, criminal organisations and the movement of proceeds across borders.

The ruling confirms that an European Investigation Order may be used to obtain evidence from an accused person through a videoconference hearing or through temporary transfer to the prosecuting state. This remains possible even if the person’s participation also allows them to attend part of the trial. The decisive requirement is that the measure must have a genuine evidential purpose and must remain proportionate to the collection of evidence.

The case concerned Italian proceedings against HG for participation in a criminal organisation and drug trafficking. HG was in custody in Belgium while being tried in Italy. The Italian court sought to hear him by videoconference, both to obtain statements with evidential value and to enable his participation in the proceedings. Belgian authorities refused to execute the request, arguing that Belgian law did not allow an accused person to appear at trial by videoconference and that such an arrangement could conflict with the right to a fair hearing.

The Court’s reasoning provides important guidance on the division between evidence-gathering instruments and procedures intended primarily to secure a defendant’s presence at trial.

Drug trafficking and criminal organisation as the predicate context

The underlying allegations involved drug trafficking and participation in a criminal organisation. These offences frequently generate cross-border evidence: communications, financial transfers, banking relationships, logistics records, travel data, encrypted messages and testimony from persons located in different jurisdictions.

Drug trafficking is also a major predicate offence for money laundering. The proceeds may be channelled through bank accounts, payment institutions, informal value-transfer systems, corporate structures, virtual assets or apparently legitimate commercial transactions. Establishing the laundering offence commonly requires proof of the origin of the assets, the defendant’s knowledge or awareness of that origin, and conduct intended to conceal, disguise, convert, transfer or use the proceeds.

Evidence concerning the predicate offence and evidence concerning laundering are often interdependent. Transaction records may demonstrate both the movement of narcotics proceeds and the mechanisms used to conceal them. Communications may reveal the organisation behind the trafficking activity as well as instructions to place or layer criminal proceeds. Testimony from an accused person may address the role of particular participants, the purpose of payments and the relationship between operational activity and financial transactions.

The Bissilli ruling is therefore relevant beyond the immediate procedural issue. It confirms that cross-border evidence-gathering mechanisms can be used at the trial stage, including where the evidence concerns the accused person’s own knowledge, conduct and role in the alleged criminal activity.

Bastian Schwind-Wagner _Follow

"The Court of Justice confirmed that a European Investigation Order may be used to hear an accused person by videoconference or to arrange a temporary transfer, including during trial, where the measure has a genuine evidential purpose. This may be particularly important in drug trafficking and money laundering cases, where testimony can help establish the criminal origin of assets, the defendant’s knowledge and the operation of an alleged criminal organisation.

An executing Member State cannot refuse a videoconference request solely because the procedure is unavailable in a comparable domestic case. However, refusal remains possible on other statutory grounds, including non-consent or incompatibility with fundamental legal principles, provided that the authority assesses the specific circumstances rather than relying only on general national guidance."

An evidential purpose is essential

Directive 2014/41 establishes the European Investigation Order as a broad instrument for obtaining evidence in criminal proceedings. It can apply at different stages of a case, including during trial. However, it cannot be used solely to secure the presence of an accused person before the issuing court.

The Court drew a clear distinction between a measure that gathers evidence and a measure whose only purpose is to bring a defendant before a court for prosecution or trial. The latter falls outside the function of the European Investigation Order and may require a European Arrest Warrant or another appropriate surrender mechanism.

A request to hear an accused person by videoconference may therefore be valid where the hearing is intended to obtain evidence, even if the practical effect is also to allow the accused person to participate in the trial. The same applies to temporary transfer where the person’s presence is necessary for an evidential measure.

This distinction matters in money laundering cases. Prosecuting authorities should identify precisely what evidence the requested hearing is intended to obtain. A request might concern the accused person’s explanation of payments, beneficial ownership arrangements, cash movements, business relationships or communications with alleged co-conspirators. It might also address the person’s knowledge of the criminal origin of assets or their purpose in using particular accounts and companies.

A request framed only as a means of ensuring attendance at trial risks being treated as an attempt to use the European Investigation Order for a purpose it does not serve. A request that identifies a specific evidential objective is more consistent with the directive and easier for the executing authority to assess.

Videoconference hearings are a distinct investigative measure

The Court rejected the argument that a videoconference hearing of an accused person could be refused simply because the measure was not available in a similar domestic case in the executing Member State.

Article 10 of Directive 2014/41 allows an executing authority, where possible, to use another investigative measure if the measure requested does not exist under its domestic law or would not be available in a similar domestic case. However, the Court held that this general mechanism does not apply to the specific videoconference procedure governed by Article 24.

The Court relied on the structure of the directive. Certain specific investigative measures expressly include a domestic-availability ground for refusal. The rules on videoconference hearings do not. That omission was significant.

A videoconference hearing of an accused person is not the same as an ordinary hearing conducted in the territory of the executing Member State under the law of that state. Under Article 24, the hearing is conducted directly by, or under the direction of, the issuing authority in accordance with the law of the issuing Member State. The executing authority remains present to verify identity and safeguard compliance with the fundamental principles of its own law, but the evidential procedure itself is directed by the issuing state.

For financial crime investigations, this means that differences between national procedural systems do not automatically prevent a videoconference request. A Member State cannot reject the request merely because its own domestic courts would not use the same procedure in a comparable national case.

Mutual recognition does not remove safeguards

The European Investigation Order is based on mutual recognition. Execution is the general rule, while refusal is an exception that must be interpreted strictly. That principle supports efficient cooperation in cases where evidence is spread across several Member States.

It does not, however, eliminate the safeguards contained in the directive. The executing authority may still refuse an order on any applicable ground under Article 11 or under the specific provisions governing videoconference hearings.

For example, refusal may be possible where the accused person does not consent, or where execution in the particular case would be contrary to the fundamental principles of the executing state’s law. Refusal may also be justified where there are substantial grounds to believe that execution would be incompatible with the executing state’s obligations under Article 6 TEU and the Charter of Fundamental Rights.

The Court stressed that these grounds are independent. The fact that one ground cannot be relied upon does not prevent the executing authority from considering another. A finding that the requested measure is not incompatible with EU fundamental rights, for example, does not prevent a separate assessment under the rule protecting the fundamental principles of national law.

This is significant in cases involving testimony by an accused person. The relevant questions may include whether the person has been informed of the right not to testify, whether legal assistance is available, whether interpretation is provided where necessary, whether the person can communicate confidentially with counsel and whether the procedure preserves the equality of arms.

General national policy cannot replace an individual assessment

The Court also placed limits on the use of general national guidelines. A Member State may issue guidance explaining how its fundamental legal principles apply to videoconference hearings. Such guidance may be useful for authorities handling large numbers of cross-border requests.

But general guidance cannot, by itself, justify automatic refusal. Article 24(2)(b) refers to the circumstances of “a particular case”. The executing authority must therefore examine the relevant facts of the individual request.

That assessment should consider the nature of the proceedings, the purpose of the hearing, the rights available to the accused person, the procedural safeguards in the issuing state and the practical arrangements agreed between the authorities. A general rule that an accused person may never be heard by videoconference during trial is insufficient if it prevents the authority from examining whether the specific procedure would actually undermine fundamental principles.

This requirement has a direct bearing on financial crime cases. Such prosecutions often vary considerably in complexity and structure. A hearing may concern a narrow evidential issue, such as the purpose of a particular transfer, or may involve extensive questioning about an alleged laundering network. The risks to defence rights may differ depending on the length of the hearing, the availability of counsel, the use of interpreters, the custody arrangements and the technical reliability of the connection.

A proper decision must address those circumstances rather than rely solely on an abstract national position.

Temporary transfer is possible, but only for evidence

The Court confirmed that an European Investigation Order may also request the temporary transfer of a person held in custody in the executing Member State. The transfer must serve an investigative measure aimed at gathering evidence, and the person must be returned within the period stipulated by the executing state.

The practical arrangements, including custody conditions and transfer and return dates, must be agreed by the issuing and executing authorities. These requirements prevent a temporary evidential transfer from becoming an indirect substitute for surrender for prosecution.

In a money laundering prosecution, temporary transfer may be considered where the accused person’s physical presence is genuinely necessary for an evidential procedure that cannot be effectively conducted by videoconference. The issuing authority would need to explain why physical presence is required and how the arrangements remain limited to the evidential purpose.

The distinction is particularly important where the accused is already detained in connection with proceedings in the executing state. The transfer cannot be used to prolong detention improperly or to bypass the safeguards applicable to surrender for prosecution.

Implications for laundering investigations

The judgment strengthens the ability of prosecutors and courts to obtain evidence in cross-border financial crime cases. It confirms that trial-stage evidence remains within the scope of the European Investigation Order, even where the requested measure also enables the accused person to attend proceedings.

For cases involving drug-trafficking proceeds, the ruling supports requests aimed at clarifying the financial structure of the alleged criminal activity. An accused person may possess information about the origin of funds, the use of nominees, the control of accounts, the purpose of cash deposits, the acquisition of assets or the operation of front companies. Such evidence may be relevant to both the predicate offence and the laundering charge.

At the same time, authorities should avoid using the instrument as a general attendance mechanism. The request should specify the facts to be established, the questions to be addressed and the evidential relevance of the hearing. It should also explain why the requested format is necessary and how the procedure will respect the accused person’s rights.

Executing authorities, for their part, must distinguish between a lawful refusal and a general objection to a procedure unfamiliar under domestic law. The absence of an equivalent domestic procedure is not, by itself, enough to refuse a videoconference hearing under Article 24.

A practical balance between enforcement and fair trial rights

Bissilli reflects the balance at the centre of European judicial cooperation. Effective prosecution of organised drug trafficking and money laundering requires fast access to evidence held across borders. Mutual recognition is intended to prevent procedural fragmentation from obstructing that process.

But cooperation operates within the limits of fundamental rights. The accused person must be informed of applicable procedural rights, including the right not to testify. The issuing and executing authorities must agree appropriate arrangements, and the executing authority must ensure that the hearing complies with the fundamental principles of its law.

The ruling does not create an unrestricted power to compel cross-border testimony. It establishes a structured approach. The measure must be evidential, proportionate and procedurally safeguarded. Refusal must rest on a recognised legal ground and, where national fundamental principles are invoked, must be based on an individual assessment.

For financial crime practitioners, the message is clear. The European Investigation Order can be a valuable tool for linking the predicate offence to the movement and concealment of criminal proceeds, including when the accused person is detained in another Member State. Its effectiveness will depend on precise drafting, a clearly defined evidential purpose and careful protection of the rights that make cross-border evidence admissible and reliable.

Dive deeper

• InfoCuria ¦ Case C-325/24 (Bissilli) ¦ Link
• EUR-Lex ¦ Case C-325/24 (Bissilli) ¦ Link